Wynne v. Parsons

• Decision Date: 20 July 1888
• Citation: 17 A. 362,57 Conn. 73
• Parties: WYNNE v. PARSONS.
• Court: Connecticut Supreme Court

17 A. 362

57 Conn. 73

WYNNE

v. PARSONS.

Supreme Court of Errors of Connecticut.

July 20, 1888.

Appeal from superior court, Hartford county; TORRANCE, Judge.

Action for libel by John F. Wynne against Martin L. Parsons. Verdict and judgment for plaintiff, and defendant appeals.

W. C. Case and T. M. Maltbie, for appellant. G. G. Sill and J. P. Andrews, for appellee.

LOOMIS, J. This is a complaint for a libel written and published by the defendant in a newspaper as follows: "A FABLE. A certain pompous toad, whose own estimate of himself was greatly in excess of his true value, imagined himself a lawyer, and, procuring a bondsman, got himself appointed by the court of probate administrator on a certain estate, but, desiring to build a pedestal to raise himself to greater political distinction, he spent the money of the estate for one of straw, which was totally inadequate to support so great a statue; the result being his inability to pay up the allowances of the court. The result was his bondsman had to be notified, and the dishonest toad had to be debarred from the practice of his profession. MORAL. A toad will be a toad in spite of his croakings, and notwithstanding his surroundings."

No claim was made, and none could well be made, that this article, if it referred to the plaintiff as a lawyer, did not constitute a libel per se. Under instructions from the court, conceded to have been proper in this respect, the jury have found that the article referred to was written and published by the defendant of and concerning the plaintiff as a lawyer, and that it was false. There was no attempt on the trial to show that the charges were true, and no justification was offered. The defendant's contention seems to have had for its main object the elimination of the element of malice, and thereby to prevent the plaintiff, under the statute, from recovering any general damages. The jury returned a verdict in favor of the plaintiff to recover $1,100 damages. The defendant's appeal to this court is based on alleged errors in the charge of the court to the jury in three particulars, namely: In respect to malice; in respect to the presumption that the defendant intended the natural and necessary consequences of the charges he made; and in respect to the damages to be recovered.

1. The first question is whether the court erred in refusing to charge, as requested by the defendant, that "upon the facts as they appear in evidence there can be no recovery unless the jury find that the publication was made with the willful intention to inflict injury upon the character and business of the plaintiff; in other words, was made with actual malice." The finding shows that "the facts as they appeared in evidence" did strongly tend to show that the publication was made with a willful intention to injure the plaintiff. Of course the request did not refer to such evidence, but to some other facts not stated in the request, and we know by the argument in this court that reference was made to facts showing that the case was brought under the provisions of a statute passed in 1855, now constituting section 1116 of the General Statutes, which is as follows: "In every action for a libel the defendant may give proof of intention, and unless the plaintiff shall prove either malice in fact, or that the defendant, after having been requested by him in writing to retract the libelous charge in as public a manner as that in which it was made, failed to do so within a reasonable time, he shall recover nothing but such actual damage as he may have specially alleged and proved." In this case no special damages were alleged or proved, and no request is shown to have been made of the defendant to retract the libelous charge. It was therefore incumbent upon the plaintiff, as the request assumes, to show malice in fact, within the meaning of the statute, as a prerequisite to the recovery of general damages. But the request was not content with a charge that the plaintiff must prove "malice in fact" within the terms of the statute, but it required the court to give a particular construction to these words, as meaning that "the publication must be made with the willful intention to inflict injury upon the character and business of the plaintiff." These words are given as the equivalent of the words "actual malice." The question, then, before us for review is whether the words "malice in fact," as used in the statute, mean willful intention to injure the person referred to, or his business. If such is the meaning, the charge was erroneous, for it was not adopted. Were this question an open one, the claim might strike one, at first blush, as very plausible, that the phrase "malice in fact" was used in contradistinction to malice implied or malice in law, and that the former might therefore require actual proof of personal ill will and hatred. But the question is not an open one, but was put to rest 30 years ago by the decision in Moore v. Stevenson, 27 Conn. 14, and distinctly reaffirmed four years later in Hotchkiss v. Porter, 30 Conn. 414.

The first case, like this, was an action for libel, where the same phrase, in identically the same statute, was before the court for construction, and the question there, as here, was, what was meant by the requirement that the plaintiff must prove "malice in fact" in order to recover general damages? The trial judge in the superior court charged the jury as follows, (page 19:) That "in regard to her [the plaintiff's] general damages the plaintiff was not entitled to recover anything unless, besides the proof of the publication and its falsity, she had also proved that the defendant was in fact actuated by malicious motives in making it; that the term 'malice' did not necessarily import malignity, spite, or hatred towards the particular individual affected by the act in question, but only that the party doing it was actuated by improper and unjustifiable motives; that the existence of malice in fact must be found by the jury, but might be proved by any legal evidence, direct or circumstantial." In reviewing this charge this court, (ELLSWORTH, J., giving the opinion,) after quoting the statute, said, (page 26:) "The defendant claims that the statute is to be so construed as to justify any and every publication, whether in a newspaper, letter, circular, advertisement, or other writing, however false and generally injurious, if the author or writer believes what he says, and the plaintiff cannot prove actual malice as distinguished from legal malice, (that is, such malice as is inferred from the libel being untrue;) or, in other words, unless the plaintiff can prove personal pique ill will, and hatred on the part of the defendant towards the plaintiff. To this broad claim we cannot give our assent." Then, on page 28, it is added: "We have said we approve of the views expressed by the court below upon the true meaning of the statute. In the charge it is said that a false publication is not of course libelous, as it was before the statute, except in certain privileged communications, but that there must be evidence that the person making an untrue publication is actuated by improper and unjustifiable motives, and that this view will satisfy the words of the statute without there being malignity, spite, or hatred towards the particular person injured. The court held that the jury must be satisfied that the publication was induced by improper and unjustifiable motives, and that this fact might be proved by any proper evidence, direct or circumstantial."

In Hotchkiss v. Porter, supra, the doctrine of Moore v. Stevenson was distinctly affirmed. The court (BUTLER, J., giving the opinion) says, (page 421:) "The phrase 'malice in fact' is a technical one, and, as the common law stood before the passage of the act of 1855, did not mean malignity, spite, or hatred, but improper and unjustifiable motive; and such the court held was its meaning in the law in question. And they further held that all that the legislature had said thereby, or could constitutionally say, was that the defendant in all cases might prove that his motives were proper and justifiable, within the well-settled principles of the common law, and the plaintiff, in order to the recovery of general damages, should show, by other evidence than mere legal presumption from the fact of publication, that the motives of the...